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General terms and conditions

GENERAL TERMS AND CONDITIONS

  1. APPLICABILITY
    • These terms and conditions shall apply to all offers, sales and deliveries by Othmar Decorations BV (“OTHMAR”) and all the relevant and related agreements with parties, hereinafter referred to as buyer or buyers, other than OTHMAR.
    • The buyer can only rely on derogating and/or additional stipulations if and insofar as these have been expressly accepted in writing by OTHMAR.
    • The applicability of the terms and conditions of the buyers is hereby expressly rejected.
    • The buyer with whom an agreement was entered into under these conditions shall agree to the applicability of these terms and conditions in later agreements between him and OTHMAR.
    • In the event of a conflict between the Dutch text of these general terms and conditions and translations thereof, the Dutch text will always prevail.
    • In these terms and conditions, in writing is understood to mean by fax, email or other electronics means.
  2. OFFERS/ORDERS
    • All offers made by OTHMAR are free of obligations.
    • The agreement and amendments thereto between OTHMAR and the buyer are concluded on the date of the written confirmation thereof by OTHMAR and solely in accordance with this confirmation, or at the moment OTHMAR has begun the performance of the agreement. OTHMAR reserves the right to unilaterally amend the agreement, provided this is done within a reasonable time period prior to the delivery date. The buyer cannot derive any rights from such a unilateral change.
    • Images, drawings, descriptions, size and weight specifications, prices or other indications that OTHMAR provides in catalogues, flyers, automated data files, website, prospectuses, price lists, offers, instruction manuals, etc. are not binding for OTHMAR.
  3. PRICE
    • All prices are in euros (unless otherwise stated) and are exclusive of sales tax and include freight costs. For sales to buyers situated outside the European Union the prices are exclusive of sales tax and ex works.
    • If the material prices, wages, freight, insurance premiums, taxes, import duties, exchange rates and such factors, which in part determine the price, increase after the sale is concluded, OTHMAR is entitled to increase the purchase price accordingly. OTHMAR is never obliged to accept subsequent orders against the price agreed in previous agreements.
  4. DELIVERY TIME, DELIVERY AND PURCHASE
    • Without prejudice to the provisions concerning retention of title in Article 5, delivery shall be deemed to have taken place as soon as the buyer takes delivery or has the goods taken delivery of from OTHMAR’s warehouses or from storage facilities in use by OTHMAR, or by transfer of the goods to a public means of transport, or – in the event of dispatch with OTHMAR’s own means of transport – on delivery to the buyer.
    • The goods – even if they are sold carriage paid – always travel at the expense and risk of the buyer and with a means of transport chosen by OTHMAR. Stagnation in the chosen mode of transport does not oblige OTHMAR to use another means of transport. Additional freight costs because of express deliveries required by the buyer will be charged to the buyer.
    • The acceptance of the goods by the carrier without a remark on the consignment note or receipt will serve as proof that the packaging was in good condition.
    • If a part of the order is ready or in stock at OTHMAR, OTHMAR can, at its own discretion, deliver this part, or wait until the entire order is ready. In the first case, OTHMAR is entitled to invoice each partial delivery separately and require payment thereof. If a partial delivery is not paid by the buyer, OTHMAR is entitled to consider the agreement, in so far as it has not yet been implemented, as cancelled without judicial intervention and without any notice of default. Without prejudice to OTHMAR’s right to compensation, as well as the provisions of Articles 9.1 to 9.5, OTHMAR is at all times, even after OTHMAR has implemented an order in whole or in part, entitled to demand from the buyer to provide OTHMAR with the security that it will meet its obligations.
  5. RISK AND RETENTION OF TITLE
    • The risk for the goods is transferred to the buyer at the moment of delivery.
    • The ownership of the goods rests with OTHMAR and is only transferred to the buyer after the buyer fully pays the agreed purchase price of the goods. The buyer is not entitled to sell the goods which are subject to a retention of title or to charge them with any limited right in rem, other than in the normal course of business.
    • For the benefit of OTHMAR, a non-possessory pledge will be established in advance on all goods delivered by OTHMAR of which the purchase price has already been paid by the customer, as security for the fulfilment by that customer of all that OTHMAR may still claim from it, without prejudice to the customer’s right to resell and deliver these goods to its customers in the normal course of its business. The buyer is obliged to cooperate with the establishment and registration of this non-possessory pledge and shall be deemed to have granted its approval thereof.
    • If and as soon as the buyer has sold and delivered the goods pledged pursuant to Article 5.3 of these terms and conditions to its customers in the normal course of its business, the non-possessory pledge for the benefit of OTHMAR will lapse.
    • If and as long as the delivered goods are subject to a non-possessory pledge, or the ownership thereof is reserved by OTHMAR, the buyer is not allowed to sell these goods or to establish any limited right in rem on it, other than in the normal course of its business.
  6. OBLIGATION TO COMPLAIN
    • The buyer is obliged to verify, at the time of delivery or immediately after, whether the delivered goods are in compliance with the agreement and to check the goods for soundness, integrity and completeness. The buyer must report any defects and/or shortcomings found immediately, or no later than 10 (ten) days after delivery, to OTHMAR in writing, on pain of forfeiture of any claim in this respect.
    • Complaints regarding non-conformity must be submitted within 10 (ten) days after these defects have become apparent, on pain of forfeiture of any claim of the customer towards OTHMAR.
    • Goods which, in the opinion of OTHMAR, a complaint is justifiable, must be returned to OTHMAR upon first request.
  7. GUARANTEE
    • OTHMAR guarantees the soundness of the goods it produced and delivered in accordance with the provisions of Article 8.
  8. LIABILITY
    • OTHMAR does not warrant that the goods it sold are suitable for the purpose for which the buyer wants to designate or use them, even if that goal is made known to OTHMAR, unless the contrary has been expressly agreed between the parties and/or otherwise dictated by law.
    • OTHMAR is not liable for any direct or indirect material or immaterial damages, by whatever name, suffered by the buyer or a third party in connection with or arising from the negotiations with OTHMAR, the agreement entered into with OTHMAR, an error, shortcoming or omission of OTHMAR, force majeure invoked by OTHMAR, a service rendered by or a product delivered, repaired or processed by OTHMAR or by any (other) cause whatsoever, unless:
      • OTHMAR has a relevant insurance and the insurance proceeds pays out, in which case the total compensation will always be limited to the amount that is paid out under that insurance in the relevant case;
      • The buyer or the relevant third party proves that the damage is due to intent or wilful recklessness on the part of OTHMAR.
    • Any claim against OTHMAR shall lapse by the mere expiry of one year after a claim has been made against OTHMAR in respect of that claim.
    • Insofar as it may be established in court that the limitation of liability as described in paragraph 2 cannot be maintained, the amount to be paid by OTHMAR in respect of compensation, including penalties, will never be higher than the amount that the buyer has paid or owes OTHMAR, excluding VAT, on account of the order or assignment in question from which the claim for compensation arises. In all cases, however, OTHMAR is never liable for indirect and consequential damages, including lost profits, lost savings and damage due to business stagnation.
    • In all cases where OTHMAR invokes the provisions of this Article, any employee(s) addressed may invoke these as well.
    • Upon first request, the buyer shall fully indemnify OTHMAR against all claims against OTHMAR by third parties in respect of any fact as a result of which the liability is excluded from this condition.
  9. PAYMENT & SECURITY
    • The buyer is obliged to pay the invoiced price within the applicable payment term after the invoice date without any deductions, discount or settlement, unless otherwise specified on the order confirmation, whether the goods sold are delivered in full or in part.
    • The buyer must communicate complaints about the invoice amount to OTHMAR in writing within 7 (seven) days after the invoice date, after the expiry of which period the buyer is deemed to agree to the invoice amount.

If the invoice amount is not in possession of OTHMAR within the term referred to in article 9.1, the buyer shall be in default by the mere expiry of this term, without any notice of default being required. In this case, the buyer owes an interest rate equal to the current promissory discount rate plus the temporary money market surcharge currently used by the Dutch banks plus the legally applicable interest rate of commercial transactions over the invoice amount or the unpaid portion thereof, from the date that the aforementioned term has expired, as well as at least 15% of the invoice amount, with a minimum of €250.00 excluding VAT, in respect of costs resulting from the delay, including,


    • inter alia, the costs of warning, bill of exchange and protest, bailiffs, legal costs and any necessary legal aid, both judicial and extrajudicial..
    • In the event of non-compliance on the part of the buyer of its obligations to timely delivery and payment, as well as in case of suspension of payments by the buyer or seizure of its goods, filing for bankruptcy, relinquishment and administration, OTHMAR is authorised by the buyer – without prior notice of default or legal judgement – to remove or to have removed any delivered goods which, pursuant to the provisions in article 5.2 have remained our property, from their location without the need for any judicial measure to enter the relevant locations. In addition, apart from the other rights which arise thereof to OTHMAR according to the law, OTHMAR has the right to keep the removed goods and/or to suspend further deliveries, in both cases until the buyer will have fulfilled all its obligations towards OTHMAR or to consider, without judicial intervention, the agreement as dissolved with regard to the non-executed part, without prejudice to OTHMAR’s right to full compensation. The buyer shall owe at least 25% of the invoice amount in respect of compensation for loss of profit. In all these cases, all our claims against the buyer, including the interest and costs referred to in article 9.4, are immediately due and payable.
    • If OTHMAR, following the conclusion of a purchase agreement, in good faith must reach the conclusion that payment is not sufficiently guaranteed, OTHMAR is entitled to demand payment in advance. If the buyer does not comply with such a request, sent by registered letter, within 14 (fourteen) days, OTHMAR is entitled to unilaterally cancel the purchase.
  1. FORCE MAJEURE
    • Force majeure exists if the performance of the agreement, in whole or in part, temporarily or not, is prevented by circumstances beyond the control of the parties and/or by circumstances on the part of OTHMAR, such as strike and exclusion, delay or absence of delivery by suppliers, transport faults, accidents, malfunctions and radioactive radiation.
    • In the event of force majeure, the obligations of the parties shall be suspended. If the force majeure lasts longer than 30 (thirty) days, the parties shall be entitled to terminate the agreement unilaterally for the non-executed part, without being mutually liable to any compensation.
  2. INTELLECTUAL PROPERTY RIGHTS
    • The buyer is prohibited from infringing any intellectual property rights resting with OTHMAR or its supplier, regarding the products shown and/or sampled and/or delivered by OTHMAR and related descriptions, designs, models, drawings, specifications, etc.
    • In the event of a breach of the provisions referred to in paragraph 1, the buyer shall, without any warning or notice of default being required, owe a fine of 50,000.00 euros, without prejudice to OTHMAR’s right to claim full damages with interest and costs. Paid or owed penalties will be deducted from any owed damages with interest and costs.
  3. DISSOLUTION
    • If and as soon as the buyer does not, not timely or not properly meet one or more of its obligations, is declared bankrupt, applies for suspension of payments, proceeds with the liquidation of its company, has its company come to a standstill, has part of its assets seized, offers a settlement or otherwise demonstrates to be insolvent, OTHMAR shall be entitled to terminate the agreement without judicial intervention and claim reimbursement of costs, damages and interest.
    • OTHMAR shall be entitled to terminate the agreement with the buyer in whole or in part, if for any reason the agreement with its supplier or client is terminated or is not performed by its supplier or client for other reasons. In that case, OTHMAR shall only be obliged to reimburse or credit the selling price it charged, with the customer returning the goods already delivered.
  4. DISPUTES AND APPLICABLE LAW
    • All agreements between OTHMAR and the buyer are governed by Dutch law. The applicability of the United Nations Convention on Contracts for the International Sale of Goods of 1980 (Vienna Sales Convention) is expressly excluded.
    • Any disputes under or in connection with the agreement shall exclusively be settled by the Dutch court in Enschede, provided that OTHMAR is also entitled to submit the dispute to the competent court in the jurisdiction where the customer is located.